Citation Nr: 1723372
Decision Date: 06/22/17 Archive Date: 06/29/17
DOCKET NO. 11-05 652A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Oakland, California
THE ISSUE
Entitlement to service connection for sleep apnea.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
B. Thompson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from February 1979 until February 2003.
This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Regional Office (RO) of the Department of Veterans Affairs (VA).
On the December 2016 substantive appeal, the Veteran requested a Board hearing by videoconference. Subsequently, in his February 2017 substantive appeal, the Veteran indicated that he did not want an optional Board hearing. Thus, his hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e) (2016).
The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action is required.
REMAND
The Board finds that further development is necessary prior to appellate review.
The Veteran is seeking service connection for a current diagnosis of obstructive sleep apnea. The Veteran has argued that sleep apnea is linked with allergic rhinitis, bronchial asthma, dysthymic disorder, hypertension and degenerative arthritis of the spine. He contends that the existence of the above conditions in service suggest he also had sleep apnea at that time as the conditions are linked. He has also alleged that the above conditions can cause or contribute to sleep apnea.
Service treatment records document reports of the Veteran experiencing insomnia and breathing problems. His niece submitted a statement indicating that the Veteran has snored loudly and made snorting and choking sounds while sleeping since the 1990's. The Veteran's former shipmate submitted a statement in which he indicated that the Veteran has snored and made snorting and choking sounds while sleeping since 1983. Based on the foregoing, the Board finds that the Veteran should be afforded a VA examination to obtain an opinion prior to adjudication of his claim. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006).
Moreover, secondary service connection has been raised as a theory of entitlement for service connection. To date, Veterans Claims Assistance Act (VCAA) notice of how to establish service connection on a secondary basis has not been provided; such notice should be provided on remand.
Although the Veteran has also alleged that his tobacco use disorder, scoliosis, deviated septum, and throat polyps also are linked to his sleep apnea, he is not service connected for such conditions. Moreover, the law prohibits payment
of compensation for disabilities resulting from tobacco abuse. See 38 C.F.R. § 3.300.
Relevant ongoing medical records should also be requested. 38 U.S.C.A. § 5103A(c) (West 2002); see also Bell v. Derwinski, 2 Vet. App. 611 (1992) (VA medical records are in constructive possession of the agency, and must be obtained if the material could be determinative of the claim).
Accordingly, the case is REMANDED for the following action:
1. Send the Veteran VCAA notice concerning how to substantiate a claim for service connection for sleep apnea on a secondary basis.
2. Obtain outstanding VA treatment records from November 2016 to present. If no records exist the claims file should be annotated to reflect such and the Veteran notified of such.
3. Ask the Veteran to provide the names and addresses of all medical care providers who have treated him for sleep apnea. After securing the necessary releases, request any relevant records identified that are not duplicates of those already contained in the claims file. If any requested records cannot be obtained, the Veteran should be notified of such.
4. Schedule the Veteran for a VA sleep apnea examination to address the Veteran's claim for service connection for
sleep apnea. The claims file must be reviewed in conjunction with examination. All indicated tests should be conducted and the results reported.
Following review of the claims file, the examiner should indicate:
a. Whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea had its onset in service or is otherwise related to military service, to include his complaints of insomnia and breathing problems therein. Please state why or why not, to include addressing the Veteran's contention that the presence of allergic rhinitis, bronchial asthma, dysthymic disorder, hypertension and spine problems in service, as well as the buddy reports of him snoring and gasping for air in service, establish that sleep apnea was present in service but undiagnosed.
b. If not related to service state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea was caused by his service-connected allergic rhinitis, bronchial asthma, dysthymic disorder, hypertension, or degenerative arthritis of the spine. Please state why or why not.
c. If not caused by the Veteran's service-connected allergic rhinitis, bronchial asthma, dysthymic disorder, hypertension, or degenerative arthritis of the spine,
state whether it is at least as likely as not (50 percent probability or more) that the Veteran's sleep apnea has been worsened beyond normal progression (as opposed to temporary exacerbations) by those service-connected conditions. Please state why or why not.
d. If the sleep apnea has been worsened beyond normal progression by the allergic rhinitis, bronchial asthma, dysthymic disorder, hypertension, and/or degenerative arthritis of the spine, the examiner should attempt to quantify the degree of worsening beyond baseline level of sleep apnea that is attributable to the service connected disabilities.
5. After completing the requested actions, and any additional action warranted, the AOJ should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be given an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if in order.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).
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K. A. BANFIELD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2016).